Constitutional Exceptionalism
by digby
Marcy Wheeler does an interesting thought experiment substituting the word “terrorist” for “sexually dangerous person” in the Supreme Court arguments from the case decided today:
[L]et’s look how some passages from SCOTUS nominee Elena Kagan’s successful argument in U.S. v. Comstock–in which SCOTUS just voted 7-2 to affirm the federal government’s authority to indefinitely detain sex offenders who are mentally ill–appear when we replace the term “sexually dangerous person” with “terrorist.” (See Adam B’s post on the decision for a good overview of the decision.) KAGAN: The Federal Government has mentally ill, sexually dangerous persons [terrorists] in its custody. It knows that those persons, if released, will commit serious sexual [terrorist] offenses; [snip] JUSTICE GINSBURG: But the likelihood is that the person will stay in Federal custody? GENERAL KAGAN: I think that that’s fair, that the likelihood is that the person will stay in Federal custody until such time as a court finds that the reasons for that custody have lapsed. [snip] CHIEF JUSTICE ROBERTS: So you would say that the Federal Government has no such power independent of the criminal conviction [enemy combatant designation]? In other words, that Congress could not pass a law saying, just as this one says, we are going to commit people who are sexually dangerous [terrorists] until a determination that they are not or until the [another] State can take them? That power would not be in Article I? GENERAL KAGAN: Without the person having entered the criminal justice system [been designated an enemy combatant] in any way.
I’ve been thinking for a long time that in light of Americans’ eagerness to set aside due process for terrorist suspects and sex offenders that the list of crimes with which the constitution is not considered adequate to deal will likely expand. It’s too illogical, even for us, to say that the failed Times Square bombing is more dangerous than a crime spree serial killer or a murderous drug gang.
It makes no sense that the constitution would give those individuals rights under the constitution but not give them to sex offenders and failed terrorists. Something will have to give. It seems almost inevitable in our current climate and with this current court that more crimes are going to be designated outside the normal constitutional order in order to justify the ones that already are.
*It should be noted that Marcy’s piece specifically links the torture caused mental illness of Abu Zubaydah and Mohammed al-Qahtani to this decision while my point is a more broad point about America’s new zeal for creating exceptions to established constitutional principles. And she’s probably right that these are the people who are most likely to be designated unfit for trial but unrealeasable —we drove them crazy and now we can’t try them or let them go. It’s the ultimate Kafka nightmare.
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